Los Angeles daily herald., 1887-01-30
= esEaencnts of Right and of the
LaW.Ss

La W.
A. legal essay in pure principle this
work is the best as yet published on
he Pacific Coast. Considering its
great merit, and that it is stated to be
the outcome OF thirty years of practice,
it i singular indeed that the name OF
!. IL author. George HI Smith. is prac-
tically unknown among as. Whatever
nay be the cause of this, the name can.
not henceforth remain unknown.
About half of the whole work is taken
mp by calm and peculiarly apt restate-
Rent Of what is known as TO the founda.
tions of right Jus) and the law (tea),
cad the extent Of their oneness. The
deiinitions made prepare US for the ex-
sended argument for the jural ss against
ths legal theory, which is really the
gais0R-d'etre Of the whoie es ny. Our
anthor claims that the fundamental
fhsory has been perverted even to falslti.
cation, and he seeks to restore it. He
aetines the legal theory to be that "a
right consists in the liberty or power
which it is the will of the State man
Hhsll have. or which according to the
will OF the State he ought to have, !"
and the jural theory TO be that "a right
consists III the liberty or power which it
= right for him to have, or which, ac-
oording to right, he ought to have" And
- to the last be might have said with
Kants' categorical imperative, that its
Eightness makes it right.
He makes very little Affirmative argu-
ment and, indeed, almost assumes lis
ponclusion as the natural and inevitable.
hut he expands very powerful argu-
snsnt against the legal theory in every
stage OF dissection. Historically, he
shows that it is a modern innovation,
suggested by Hobbies. brought in 10y
Wackstone, and kept in vogue by Bent
ham, Mill, Austin, Amos and Maine, SO
that it is now the prevailing thought.
This. however. is not enough. 1t re-
aaires q resort to u.ilitarianism and the
denial OF the existence of natural rights.
Nowhere have we seen more satisfac
tory assault upon Bentham's theory of
ntiiity. But in the argument for the ex-
istence OF natural rights, the Keystone
Of his position. cur author is less con-
vincipg. Right, en- vi termini, is a social
power or liberty to act. In the solitary
state there is no abridging standard OF
1AU0Etys tOI tbCiO 10 NJ othei
which can abridge. But society implies
other powers, necessarily abridging, and
the social right is the resultant in the
harmony of those powers. A natural
right must be unconditioned; society
ilsslf il an inevitably conditioning power;
0aa does not and never did live except
n society; it is quiie immaterial to the
argument what he might do il he were
aot in society; in society no rights can
axist destructive to itself; and SO it rec
qGnixes, strictly speak ng, no natural
rights. The phrase is, indeed. often and
1sosely used, but it does not include
Eishts self.sustaining to the point of in
&efensibiiity, nor does it exclude them
bscause they are often defeated in prac-
~. It usually means by this m;slead.
~ phrase tucn rights as the universal
4onscience declares and the universal
oonsenHus agrees should not be impaired
Yet not one Of these can be named which
~ not in every age been somew here
oetually impaired, or one upon which
~ universal conscience or opinion has
e1ways agreed. What. then, is to be
the standard1
Our author would 60 back to Aristotle,
Natures secretary. who saith (Ethic.
II. W that natural right is that which
,emong alI men hath the same potency"